In a remarkable 2-1 split decision, the Fourth Circuit Court of Appeals (which presides over the four states of the Carolina’s and the Virginias) invalidated the policy of Forsyth County, NC that allowed prayers to be offered before meetings of the County Council. The court acknowledged that the county policy was “neutral and proactively inclusive.” However, it was struck down because the court found that too many “sectarian” references would make people feel uncomfortable.
The decision is troubling on many fronts. It is out of step with many other federal courts that have considered the validity of public invocations, including the United States Supreme Court. It ignores the religious heritage and history of our nation. But more troubling is the impact of the court’s decision on prayer itself. The court decision ignores a key purpose of a public invocation. It requires the government to censor private prayers and engage in comparative theology. The majority opinion punishes a county for the demographic make-up of the community and signals to people from many faith traditions that their prayers are not welcome.
In a series of short blogs I will explore some of the troubling aspects of the decision in Joyner v. Forsyth County, NC decided on July 29, 2011.
If too many “sectarian” references are a problem, what is a “sectarian” reference? The majority opinion doesn’t attempt to define it, and for good reason. The only two federal courts that have tried to distinguish between what is “sectarian” and what is “non-sectarian” have come to the conclusion that it is a “vague and unworkable standard.” See Galloway v. Town of Greece and Pelphrey v. Cobb County. In the Forsyth case the plaintiffs who brought suit thought a reference to Jesus was “sectarian” but a reference to Allah was not. How many denominations or faith traditions have to agree before it is “non-sectarian?” The Forsyth majority objects to references of a “redeemer,” but many faiths include a concept of redemption. Doesn’t a singular reference to God seem sectarian to a Hindu, Buddhist, or Wiccan that believes in many gods? Or for that matter, doesn’t any reference to God seem sectarian to an atheist?
Part of the problem is that identifying a “sectarian reference” requires understanding the context in which a word is used by a particular faith. Understanding context requires theological analysis. For example, in an different court decision, the same judge who wrote the majority opinion in Forsyth found a reference to “King of kings and Lord of lords” to be “non-sectarian” despite the fact that it is a specific title given to Jesus Christ in Revelation 19:16. A Constitutional standard cannot require a government official to know whether or not a reference can be broadly applied to one faith or is exclusive to a particular faith.
The Constitution prohibits the government from deciding which religious words are acceptable and which are not, even if the goal is to make people feel more comfortable. That is why the Supreme Court noted that a good-faith effort to prevent sectarian references to avoid religious animosity or promote a sense of community does not justify the government getting involved in editing the content of prayers. The High Court stated “[T]hough the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself.” See Lee v. Weisman.
In the past four years, five different federal court cases have upheld public invocation policies like the one adopted in Forsyth County. The decision of the 4th Circuit is out of step with these other federal courts and out of step with the U.S. Constitution.
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